March 30, 2020

Ofcom says that it has received a number of queries from broadcast licensees about the Coronavirus situation and how Ofcom will view any impact the current situation has on compliance with regulatory obligations.

Ofcom recognises that all organisations will need to follow Government advice as it emerges and make their own judgements on the appropriate operational steps required to best protect and support their staff and the implications for their viewers and listeners. Compliance with regulatory obligations is important, it says, but Ofcom assures broadcasters that they should “feel empowered to take all necessary steps to protect their staff at this difficult time”.

Ofcom says that it is continuing to assess any complaints it receives about broadcast content during this time. It expects all broadcasters to continue to have measures in place to make and retain recordings of broadcast output and produce these to Ofcom on request as far as this is possible. In light of the current situation, Ofcom is asking broadcasters:

• to provide recordings requested by Ofcom electronically (rather than by post) for the foreseeable future; and
• to communicate and correspond with Ofcom on any Standards or Fairness and Privacy case by email (rather than post), wherever possible.

Ofcom reminds broadcasters that they should have plans in place to ensure their output complies with the Broadcasting Code in the event that their compliance officers are unable to work. If their contingency plans for compliance come under threat, broadcasters should consider carefully whether they should remain on air.

Broadcasters are reminded that given the suspension of schools across the UK, care should be taken when broadcasting content during the daytime when children will be available to see or listen to content.

Ofcom also reminds all broadcasters of the significant potential harm that can be caused by broadcasting material relating to the Coronavirus. This could include:

• health claims related to the virus that may be harmful;
• medical advice that may be harmful; and
• accuracy or material misleadingness in programmes in relation to the virus or public policy regarding it.

Ofcom says that it will be prioritising its enforcement of broadcast standards in relation to the above issues. Ofcom says that it will consider any breach arising from harmful Coronavirus-related programming to be potentially serious and will consider taking appropriate regulatory action, which could include the imposition of a statutory sanction.

As for programming commitments, Ofcom understands the potential impact of the coronavirus on broadcasters’ schedules and production, meaning that some may not be able to meet their commitments. Ofcom says that does not currently plan to adjust broadcasters’ existing programming commitments. However, this is an ongoing and unpredictable situation, and it is monitoring it closely.

As for enforcement, Ofcom says that it will take a reasonable and pragmatic approach. It recognises that some broadcasters may not be able to comply with certain terms of their licence for reasons beyond their control given the exceptional circumstances, in particular in relation to certain specific programming and production requirements. In situations where broadcasters have failed to meet their licence obligations, Ofcom will take the impact of coronavirus fully into account. For the next three months, Ofcom will, in certain situations, consider the force majeure condition in the licence to be engaged, and a licensee will not be liable to enforcement action as a result.

As for licence fees, Ofcom says that it appreciates that broadcasters may well be facing financial difficulties in the current circumstances. It says it will be in touch this week about any licence fee payments due in the coming weeks.

Any licensee who experiences issues complying with their licence obligations should notify Ofcom of the issues they are facing and keep it updated as far as this is possible. To read Ofcom’s note in full, click here.